The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.